In today’s world, it is increasingly common to own digital assets.
But if you lose mental capacity or die, will your attorney or executor be able to access those assets?
Do you have digital assets?
Increasingly clients use cloud storage for documents and photographs. Are you on social media? Do you:
- use email?
- use PayPal?
- have an investment account?
- own any Bitcoin?
- have an Amazon account?
- use an online gaming account?
If the answer to any of these questions is ‘yes’, then you own digital assets.
For more examples of digital assets, see here.
Are your documents digitally diligent?
New research released by the Law Society in January 2021 showed that only a quarter of those surveyed knew what happens to their digital assets when they die. Indeed 93% of people did not consider digital assets at all when making their Will.
It is even less common for digital assets to be addressed when lasting powers of attorney (LPAs) are created.
What do your documents say?
What happens if you can’t access your digital assets yourself?
If you lose mental capacity or die, your attorneys or executors will need to access your digital assets.
Whether (or not!) they are able to do this is governed by the individual service providers. The service agreements you will have signed at the outset will often not accept the authority of executors or administrators of an estate, or attorneys. Many will require a court order to be obtained – an expensive and lengthy process. A grant of probate is usually not sufficient.
It can be very distressing for family members to be unable to access family photographs stored online.
Several years ago, I spoke with a client (let’s call him Dave) who had lost his only daughter in her early 20s in very distressing circumstances. Given her age, no thought had been given to a Will or making any provision for what she wanted to happen after her death. The estate (in monetary terms) was very small, but she had been a prolific photo taker and had kept all of her photos online and on social media.
Dave desperately wanted access to those photos. He felt they were her legacy.
Unfortunately, the service provider told him that access could not be provided without a court order. The fact that he was the administrator of her estate was not sufficient. Regrettably, Dave was not able to apply for a court order as he did not have the funds to take the necessary steps.
Dave’s situation is upsetting and far from unique.
News: Apple take a step in the right direction
Last week, Apple has announced a new ‘Digital Legacy’ feature on their devices. An individual will be able to update their account with the details of a person they want to have access to their digital assets in the event of their death. That person will then just need to produce a death certificate and Apple will give them access.
This step is the result of years of campaigning and is most definitely an improvement.
The future of digital assets
But this news only applies to Apple products.
The situation is still obscure for other products.
The system also relies on the individual planning ahead. I do not think it would have helped Dave, as there are not many 20-year-olds who have given thought and made plans for their deaths.
What can you do about it?
It is important that your digital assets are considered when you make an LPA or Will.
This is a rapidly growing area of law, so if you have an existing Will in place, it may not be something that was considered at the time. You should review your Will and make sure you have made appropriate arrangements.
If you create an LPA, it is possible to include a clause which will provide clarity and give an express authority to your attorneys (something some service agreements will require).
How can we help?
If you are interested in learning more, we would be happy to speak with you to answer any questions. We can also help you put in place the appropriate legal documentation that can provide peace of mind and protection for the future.